Ko Hoi Seung Korin v. Liu Kwok Keung

HCPI 1206/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1206 OF 2014

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BETWEEN

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ASSESSMENT OF DAMAGES

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INTRODUCTION

1.This is the assessment of damages hearing pursuant to the interlocutory judgment on liability which was entered, by consent, on 5 January 2015 against the defendant in favour of the plaintiff for the accident happened on 13 July 2012 with damages to be assessed.

BACKGROUND

2.The plaintiff is now aged 58 years and has secondary education level.  She was and is still working as an accountant for a company called Hi-Bisshi (HK) Ltd (“Company”), of which she is also a director and shareholder of 30% shares.

3.On 13 July 2012, the plaintiff met with a motor accident whilst she was driving a private vehicle being hit on the left rear side by the defendant's vehicle.  She was not admitted to hospital immediately for any emergency treatment.  She continued working in the following days.  Until 17 July 2012 ie 4 days after the accident, she attended the Accident & Emergency Department of Alice Ho Miu Ling Nethersole Hospital for neck pain. Physical examination revealed mild tenderness over her neck without focal neurology.  X‑ray spine showed no fracture and the diagnosis was neck sprain.

4.On 18 July 2012, she attended the out‑patient department of the Baptist Hospital and complained of neck pain with numbness over two right fingers.  She was advised to have MRI of her cervical spine.  But eventually, no MRI test was done.

5.On 23 July 2012, she attended Dr Wilkie Ngai of Baptist Hospital for orthopaedic consultation.  Physical examination revealed tenderness and soft tissue swelling over lower cervical spine region, her neck range of motion limited by pain and paraspinal muscle spasm.  No neurological deficits were noted.  Options of further investigations were offered but declined by the plaintiff.

6.On 27 July 2012, she attended Dr Kenric Lau, specialist in orthopaedic surgery.  She complained of tenderness of neck, trapezius muscles and pain over neck with radiation to both shoulders.  The diagnosis was whiplash injury to neck with irritation of nerve roots to right upper limb.  She was referred to physiotherapy and advised to have MRI of her cervical spine.  Similarly, no MRI test was done.

7.On 7 August 2012, she attended Mr Kerwin Wong of physiotherapy. After 11 sessions ending on 27 September 2012, she reported 60‑70 % improvement of her neck with pain decreased but easily felt tired after prolonged reading for 15 minutes.

8.From 18 October 2012 to 28 May 2013, she underwent another 25 sessions of physiotherapy and reported 80% improvement in her conditions.

9.The plaintiff's sick leave expired after 22 October 2012.  She claims to suffer from neck and shoulder pain with numbness of both hands and also insomnia.  Lowering her head to red documents or use computer caused aggravation of neck and shoulder pain.

EXPERT OPINION

10.Dr Lam Kwong Chin ("Dr Lam") for the defendant and Dr Wong See Hoi ("Dr Wong") for the plaintiff have compiled a joint medical report dated 20 May 2014.

11.In the joint examination held on 20 March 2014, the plaintiff mainly complained of intermittent neck pain, which was worse upon end of extension and prolonged desk work and also intermittent left hand numbness over tip of radical 3 fingers and tenderness at left paraspinal and trapezius muscles.  She told the experts that she had to take painkiller every night.  X‑rays of the cervical spine were taken showing degenerative changes with marginal osteophytosis in the lower cervical spine, in particular C5/6.

12.The experts agreed that the plaintiff probably had suffered from a whiplash injury causing a sprained neck with soft tissue (paraspinal and trapezius muscles) involvement, which was compatible with the described mode of accident.  Despite the initial complaint of numbness over the right middle and ring finger, the plaintiff was repeatedly noted to have no neurological deficit upon examination.  She had a satisfactory functional recovery.

13.The experts noted that the side of neck and limb complaints was initially at the right side but changed to the left side at the assessment.

14.The experts also agreed that the changes in C5/6 which could cause irritation to C6 nerve root, could explain the complaint of numbness over radical side of the hand and her current symptoms were possibly triggered on top of cervical spine degeneration. Further institutional treatment and surgery is not required and maximum medical improvement had been reached.

15.Concerning the sick leave period from 17 July 2012 to 22 October 2012, Dr Wong considered the period acceptable whilst Dr Lam opined that it was unduly prolonged and suggested 4 weeks to be the maximum.  As the plaintiff has not claimed any loss of earning for this period, it is not necessary for me to make any determination on this issue.

FINDING OF PLAINTIFF’S INJURIES

16.Mr Gidwani for the defendant challenged the credibility and reliability of the plaintiff and submitted that she has exaggerated the extent and severity of her injuries.  Mr Gidwani cross‑examined the plaintiff on the reason of failure to undergo MRI test as suggested by different doctors. She explained that its costs about $20,000 were expensive.

17.Under the cross‑examination, the plaintiff said that she had physiotherapy treatment on both sides of the shoulders but not just right shoulder and that she did complain about numbness and pain on both sides at the joint examination by the experts.

18.Mr Sakhrani for the plaintiff submitted that she was an honest witness and that even she makes mistakes or lies, it does not necessarily mean that the entirety of her evidence is to be rejected.

19.In fact, the experts have reached very substantial agreement in respect of the plaintiff’s injuries and present conditions except some differing views regarding the impact of the cervical spine degeneration on her.  I have no doubt to accept that the plaintiff’s neck pain is genuine and was caused by the accident.  I also accept that her symptoms were triggered on top of cervical spine degeneration and the accident acted as a major triggering event.  I do not think that her pre-existing degeneration of cervical spine plays important role in her present complaints.  I agree that she has some residual neck symptoms upon prolonged working and reading.

20.Besides, it is not disputed that her right shoulder was injured and she suffered from right upper limb numbness as a result of the accident based on the various medical records and documents.  However, regarding the injury to her left upper limb, the experts expressly noted in joint medical report that the side of neck and limb complaints was initially at the right side but changed to the left side at the assessment.  Although the plaintiff insisted to have complained about numbness on both sides to the experts, I reject her oral evidence in this regard since it is extremely unlikely for the experts to omit to record all her complaints in the joint medical report.

21.Furthermore, about 14 days after the accident, although the plaintiff did complain to Dr Kenric Lau of pain over neck with radiation to both shoulders, she was diagnosed by Dr Kenric Lau to have neck pain with irritation of nerve roots to right upper limb instead of left upper limb. In other words, Dr Kenric Lau did not consider any or any significant injury to her left upper limb or shoulder; otherwise, he should have mentioned in the report.

22.In the report of Quality Healthcare Physiotherapy, the subjective complaints of the plaintiff are stated as neck pain and right shoulder pain but not left. Similarly, it was stated in the report of Cosmo Physiotherapy Centre that there was tenderness over C7/T1 and right inter‑scapular region but not left.  That is to say, the plaintiff had not mentioned to the physiotherapists about the injury to her left upper limb or shoulder; otherwise, there must be some treatments to her left upper limb or shoulder.  On balance of probability, I find that the plaintiff has exaggerated the extent of her injuries, in particular her complaint of intermittent left hand numbness over tip of radical 3 fingers and tenderness at left paraspinal and trapezius muscles.

23.Even if I am wrong in this finding, such injury must be very minor.  In fact, as opined by Dr Wong in paragraph 62 of the joint medical report, the plaintiff’s numbness of left radical 3 fingers is certainly not in as severe degree.

24.I also find that the injury to her right shoulder and her right upper limb numbness is not serious and has almost fully recovered at the time of the joint examination held on 20 March 2014.

PSLA

25.The plaintiff claims $400,000 under this head whilst the defendant suggests $100,000.

26.In Anil Jhuremalani v Fajada[1], the plaintiff suffered a whiplash injury and his neck pain reduced his sessions of tennis and prevented him from doing Thai boxing.  The court awarded $200,000.  In my view, this case can be distinguished as there is no evidence to show that the social life of the plaintiff in our case is greatly affected.

27.In Kwok Sui Shum Dorothy v Hui Lam Ho[2], the plaintiff suffered not only neck pain but also anxiety and depression.  The court found that her psychiatric condition was not caused wholly by the accident and awarded $240,000.  I am of the view that the pain and suffering of the plaintiff in this case is much greater than the plaintiff in our case and that the plaintiff in this case is substantially younger than the plaintiff in our case.  Hence, this is not a good comparable case. 

28.In Muhammad Saddiq v Cheung Chi Keung[3], the plaintiff suffered not only neck pain but also a sprained back and was hospitalized for a year.  The court found that he was unfit to return to pre-accident work and awarded $250,000.  Similarly, I think that the injuries of the plaintiff in this case is much serious than the plaintiff in our case who, in particular, had not been hospitalized at all and is able to return to pre-accident work.

29.In Li Tat Chuen v Yip Wing Chuen Jacky[4], the plaintiff suffered a whiplash injury and complained of numbness over his four limbs.  The court found that he had exaggerated his neck disability but accepted that he suffered from minor psychiatric symptoms.  He was awarded $175,000 for PSLA.

30.In Kwan Wing Leung v Fung Chi Leung[5], the plaintiff suffered soft tissue injury of the neck from a sprain injury in the accident.  The defence expert opined that x‑rays showed pre‑existing degeneration of cervical spine and that the plaintiff would very likely develop neck pain within 3 to 5 years.  The court awarded $120,000 for PSLA.

31.I have thoroughly considered not just the above authorities but also all other authorities concerning PSLA cited by the parties’ Counsel.  Taking into account of the relevant circumstances including inflation[6] and guided by the authorities, I award $140,000 under the head of PSLA.

LOSS OF EARNING

32.As the plaintiff was a 30% shareholder of the Company, she claimed that dividends were an integral part of the remuneration since her basic salary was only $7,000 per month.  It is not in dispute that an interim dividend of $1,200,000 was declared to the shareholders and was paid into her bank account on 11 July 2012 for distribution ie $360,000 to her and $840,000 to another shareholder.  Both the plaintiff and the other shareholder had signed and acknowledged receipts of the respective payments.  Nonetheless, as a result of the plaintiff’s 3 months sick leave and her reduced efficiency thereafter, she lost her dividend.  Originally in her witness statement and Revised Statement of Damages, she claims loss of dividend in a sum of $675,000 on average each year. 

33.The Company was making money before 2009 and there was a windfall in 2010 from a profit sale of a property owned by the Company.  Dividends were declared in 2010/2011 and 2011/2012 from the sale proceeds.

34.Under cross examination, the plaintiff agreed that original intention when the $1,200,000 was deposited into her bank account on 11 July 2012 was the dividend for the two shareholders and that the payment of $1,129,887.8 for purchases made on 12 July 2012 was a personal loan back to the Company.  She further said that during her sick leave, nobody followed the progress and that the business had gone down.  Hence, at a meeting with the other shareholder in December 2012, it was decided to treat the bank deposit on 11 July 2012 as a director’s drawing and the sums spent on the purchase of goods next day as repayment of loan to the Company.  The audited account for 2012/2013 showed substantial drop of revenue and no dividend being paid in this financial year. She now claims $360,000 for loss of dividend.

35.The plaintiff said that she genuinely believed that she was entitled to convert a paid dividend to be a director’s drawing since it was a small company with just two shareholders and directors.  As a result of the accident, the shareholders agreed to forego the cash benefit of dividend.  No written minutes of the shareholders meeting in December 2012 was produced.

36.Mr Gidwani for the defendant submitted that converting “the paid dividend” to a “director’s drawing” and “personal loan” to “repayment of loan” without execution of documents is arbitrary and manipulative.

37.Mr Sakhrani for the plaintiff submitted that the issue is not a company law issue and that the real question is: but for the accident would she have got a benefit of $360,000 which she has now lost?

38.In Chan Tak Yim v Wong Tit Kin[7], the Court of Appeal said that the claim for loss of company profits must be satisfied with reasonable certainty that the alleged loss had occurred or would occur.  Based on the oral evidence of the plaintiff and the audited accounts of the company for the past few years, I am not satisfied that the Company suffered loss of profit but for the accident or due to the plaintiff’s absence for 3 months and her subsequent reduced efficiency. She was merely employed as an accountant with mainly accounting, financial and administrative works.  She had minimal influence in the company’s profitability.  I am of the view that more precise evidence in support is expected.

39.I understand that the plaintiff is not claiming the Company’s loss of profit but her loss of dividend.  However, I cannot follow that if the plaintiff fails to prove that the Company has suffered any loss of profit but for the accident, how she can prove her loss of dividend but for the accident.  In other words, there is no or lack of causation.  The cases, such as Lee v Sheard[8], Jason v Battern[9], Ward v Newalls Insulation Co Ltd[10] and Vaughan v Greater Glasgow Passenger transport Executive[11] cited by Mr Sakhrani for the plaintiff can be distinguished as the courts in these cases had accepted that the companies or partnership in question did suffered loss of profit. 

40.Furthermore, I accept Mr Gidwani’s submission that the plaintiff suffered no loss even if the Company did not declare dividend for 2012/2013 and 2013/2014 since the money would be kept in the Company’s retained profits for payment of dividend in the future.  The Company or in fact, the plaintiff with the other shareholder, may decide to declare dividend at any time after my decision whether or not the Company has made profit.

41.Lastly, I cannot see any reason why the plaintiff would agree to convert a paid dividend to be a director’s drawing at the shareholders meeting in December 2012.  If she refused to agree, there will be no loss of dividend.  It is trite law that the plaintiff who claims damages has the duty to mitigate.  In my opinion, if she really suffered any loss of dividend, it was lost due to her agreement made in December 2012 but not as a result of her absence for 3 months, her subsequent reduced efficiency or the accident.

42.In the circumstances, I reject her claim for loss of dividend or earning.

LOSS OF EARNING CAPACITY

43.The plaintiff claims $150,000 under this head whilst the defendant opposes since she affirmed under cross examination that her employment with the Company is so secured that she would not be at any risk of losing it.

44.In view of the fact the plaintiff is a director of the Company holding 30% shares and her age of 58 years, I agree with Mr Gidwani’s submission that there is no real and substantial risk that the plaintiff would lose her job in the Company and that she is unlikely to go into the labour market in the foreseeable future.

45.I consider no legal basis for the plaintiff to make any claim under this head.

SPECIAL DAMAGES

46.The defendant agreed the medical expenses in the sum of $17,317.

47.For the travelling expenses, the plaintiff claims $4,600 being $100 for 46 trips and the defendant suggests $1,000.  No taxi receipt is produced.  In my view, on average $30 per round trip by public transport to and from various hospitals, clinics and/or physiotherapy centre (all in Tai Po region where the plaintiff lives) is reasonable in the circumstances.  I thus allow $1,380 (ie $30 x 46).

48.For the fees of massage for pain relief in neck and shoulder, the plaintiff claims $21,280 (ie $2,800 x 4 + $5,040 x 2).  Mr Gidwani for the defendant cited Wong Yan Lam v International Hire Cars Ltd[12], in which the court disallowed the claim based on the receipt from a beauty parlour.  As there is no evidence before me that any medical officer recommends the treatment of neck and shoulder massage to the plaintiff and that the staff in the beauty parlour has any medical qualification, I would disallow such claim.

49.Regarding tonic food, the plaintiff claims $30,000 and the defendant suggests $3,000.  In view of the minor injuries suffered by the plaintiff, I only allow $5,000 on a broad-brush approach.

SUMMARY

50.In light of the above, I come to the conclusion as follows: ‑

Item	Description	Amount (HK$)
(i)	PSLA	140,000
(ii)	Special damages ($17,317 + $1,380 + $5,000)	23,697
	TOTAL	163,697

51.Interest will be awarded at 2% per annum for PSLA from date of the Writ (ie 20 November 2014) to the date of assessment.

52.Interest will be awarded on special damages at 4% per annum from the date of accident (ie 13 July 2012) to the date of assessment.

53.Order nisi that costs of this assessment of damages be to the plaintiff, to be taxed if not agreed, which shall become absolute unless any of the parties apply to vary by way of summons within 14 days.

Mr Ashok Sakhrani, instructed by Vincent TK Cheung, Yap & Co, for the plaintiff

Mr Victor Gidwani, instructed by Leo Cheng & Co, for the defendant